CALIFORNIA SUPREME COURT.

but who alleged that the term of imprisonment | mained in jail, operate as a complete execution had expired. Petitioner remanded.

The facts sufficiently appear in the opinion. Mr. A. H. Carpenter for petitioner. Messrs. C. S. Denson and Wilson & Wilson, contra.

De Haven, J., delivered the opinion of the court:

of the judgment; and it would seem from the mere statement of the proposition that the contention of petitioner on this point cannot be sustained. The sentence of the court was that he pay a fine, and that part of the judgment relating to imprisonment was merely incidental to the judgment of fine, and in the nature of an award of execution directing the The return to the writ of habeas corpus is- particular way in which that judgment should sued herein shows that the petitioner, D. M. be enforced, in the event of the non-payment Vance, was on October 18, 1889, adjudged by of the fine imposed, and it seems clear to us the Superior Court of Sacramento County to that such judgment can only be satisfied by a be guilty of contempt, and to pay a fine there- compliance with its terms. In this case it is for of $300, and to be imprisoned in the county admitted that the judgment of fine has not been jail of Sacramento County until such fine was paid, and that the defendant has not suffered paid, in the proportion of one day for every the alternative of actual imprisonment. The dollar of the fine. The petitioner was on that judgment therefore remains in full force. The day committed to jail under said judgment, act of the sheriff in releasing the petitioner was and there remained until October 22, 1889, unauthorized, and petitioner's departure from when he was released by the sheriff, and re- the jail to which he had been lawfully commained at liberty, free and without confinement, mitted, without having been discharged by due until June 10, 1891, at which date he was re- course of law, was equally so, and was in effect a arrested under an order of the superior court technical escape, from which he can derive no made June 9, 1891, directing that its former advantage. The time of petitioner's absence judgment be enforced. The release of peti- from jail, in violation of law, cannot be contioner by the sheriff was not by any order of the sidered as having been spent in jail in satisfaccourt, but upon an undertaking given by petition of the judgment which required his actual tioner on appeal to the supreme court from said imprisonment. judgment of contempt, and it may be assumed This question, although presented here for that both the sheriff and the petitioner acted the first time, is not a new one. Re Edwards, upon the belief that the execution of said judg 43 N. J. L. 555, the petitioner had been comment was stayed by said appeal and undertak-mitted to state's prison for the term of ten years ing. The petitioner now claims his release at hard labor. He made his escape, and reupon various grounds which assail the validity mained at large for seven years, and he claimed of the original judgment for contempt, and that, notwithstanding such fact, he was enalso because "the term of such imprisonment titled to his discharge at the end of the term has long expired, and there having been no of ten years, but the supreme court, in an elablegal or authorized suspension of said judg-orate opinion, held otherwise. The same ment." In regard to the first claim of peti- question came before the Supreme Court of tioner it will be sufficient to say that the affi. Kansas in the well-considered case of Hollon v. davits charging him with contempt were such Hopkins, 21 Kan. 638, and was disposed of adas to authorize the order which directed him versely to the contention of the petitioner here. to show cause why he should not be punished In that case the petitioner had been sentenced for the contempt therein alleged, and the sub- to the state prison for three years "from the sequent proceedings ending in the judgment 19th day of September, A. D. 1874." On the for contempt were regular, and the judgment next day after sentence he made his escape, itself valid. The remaining ground upon and was not recaptured until 1878, and he inwhich the petitioner claims his release presents sisted that the judgment had expired by its own the single question whether his release from limitation, but the court held that the essential jail under the circumstances here stated, and part of the judgment was that petitioner thereafter remaining at large with free and be imprisoned for three years, and that the perfect liberty, for a length of time sufficient time fixed by the court for its commencement to have satisfied said judgment if he had re- was not such a material part thereof as to per

mencing July 13, 1870. He escaped September 21, 1870, and was not apprehended until January 14, 1871. He sued out a writ of habeas corpus, but the court refused to discharge him, holding that he must bear the full measure of imprisonment imposed.

Workhouse commissioners are without authority to establish rules by which a subsequent sentence against one imprisoned shall date from his incarceration, or by which deduction shall be made from sentences for good behavior. Vanvabry v. Staton, 88 Tenn. 334.

A prisoner who has served out the full extent of any valid sentence under the general laws will be discharged, although he was sentenced to a longer term, whether the judgment was altogether erroneous or only void as excessive. Re Franklin, 77 Mich. 615.

Under the New Hampshire statute, a convict who has been incarcerated, but subsequently com

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mitted to an insane asylum, cannot, upon discharge from the asylum, be remanded to prison, if at the time of the discharge the term for which he was sentenced to imprisonment has expired. Re McQuinn, 65 N. H. 84.

Gross v. Rice, 71 Me. 241, is not in conflict with the cases which have been cited. There, a statute providing that a prisoner should not be discharged from state's prison until he has remained the full term for which he was sentenced, excluding the time he was kept in solitary confinement for violating the prison rules, was held to be unconstitutional, on the ground that it deprived him of liberty without due process of law.

The defendant, in Ex parte Clifford, 29 Ind. 106, was sentenced, September 13, 1862, to three years in state's prison. January 9, 1863, he escaped, and remained at large until April 4, 1867, at which time he was recaptured. Being brought up on habeas corpus, his discharge was refused.

We coucur: Harrison, J., Sharpstein, establish the fraudulent intent, that satisfies J.; McFarland, J.

This action rests upon section 3439 of the Civil Code: "Every transfer of property with intent to delay or defraud any creditor is void." "Every transfer of personal property is conclusively presumed if made by a person having the possession or control, and not accompanied by an immediate delivery to be fraudulent and Messrs. J. P. Phelan and Garber & therefore void against those who are his credBishop, with Messrs. Chickering & Thom-itors, while he remains in possession." Civil as, for respondents. Code, § 3440.

1891.

BULL V. BRAY.

Then, to exclude all possibility of miscon- to defeat creditors." "That the question of ception arising out of the conflicting decis-solvency or insolvency of the grantor at the ions of other States as to whether the ques- time of the making of the deeds is a matter tion of intent is a matter of law or of fact, of evidence to be given its due weight in desection 3442 provides that in all cases aris-termining the ultimate fact as to the frauduing under section 3439 "the question of fraud-lent intent of the grantor; that a rich man ulent intent is one of fact, and not of law." may make a fraudulent deed as well as one It further provides that no transfer shall be who is insolvent; and that while a volunadjudged fraudulent solely on the ground tary conveyance by an insolvent may be prima that it was not made for a valuable consid-facie fraudulent, it cannot be conclusively eration. It also expressly excepts transfers fraudulent, for that would make the question These of personal property arising under section of intent a question of law, and thus be in 3440, for that section makes the question one violation of that provision of the Code which of law by providing that transfers made in says it shall be a question of fact." a certain way shall create a conclusive pre- views, to a great extent, are supported by sumption of fraud. The general contention the exhaustive case of Seward v. Jackson, 8 of appellants in this case is fairly illustrated Cow. 450, and by other authority, both Engby the doctrine laid down by Bump, in his lish and American. The cases in this counwork on Fraudulent Conveyances, 3d ed. 271, try passing either directly or indirectly upon 272: "If the act necessarily delays, hinders, the questions involved in this litigation are or defrauds his creditors, then the law pre practically numberless, and, as we have alsumes that it is done with fraudulent intent.ready seen, are greatly at variance. But, as The intent is to be assumed from the act. has been said by Bigelow on Fraud (Preface, The circumstances of the act, or rather the iv. and v., ed. 1877): "The law here to be act itself, is conclusive evidence of fraud, applied is statutory law, and, as to the statfor no man is permitted to say that he does utory law concerning fraud on creditors and not intend the necessary consequences of his purchasers, each State of the Union, with The law will not specu- few exceptions, has a Code of its own, inown voluntary act. late about what is actually passing in the terpreted by independent tribunals, and endonor's mind, for the act need not be immoral forced by distinct and diverse penalties and or corrupt. The law does not concern itself procedure. With deference to the views of about the private or secret motives which others who have attempted to present a harHe may monious view of the statutes of the different may influence the debtor. make a conveyance with the most upright States, the author is satisfied that such efforts are both unsatisfactory and dangerous. The intentions, really believing that he has a right to do so, and that it is his right and decisions of the courts of New York concernduty to do it, and yet, if the transfer is vol- ing the interpretation of an ambiguous statuntary, and hinders, delays, or defrauds his ute of that State, that is, concerning the The intention of the Legislature of that State in creditors, it is fraudulent. presumption in such a case is conclusive, the passage of the Act, -cannot be safe auand against it all other evidence is unavail-thority in another State, even upon a quesThe Legislature of ing. The debtor may have some other pur- tion of the meaning of a statute framed in pose in view, but the intent to defraud is a the very same words. part and parcel of his act. It is upon these New York meant one thing by the language principles that the law relating to voluntary used, and the Legislature of another State In the construction of may have meant something else, and so the conveyances rests. the Statute, they are deemed within its opera- courts of each State may have declared, and tion, when they necessarily tend to defeat rightly. To say, therefore, that the decisions the just rights of creditors, even though they are in conflict is incorrect, and to attempt to Without attempting are made bona fide and with the intention of deduce the true rule of law as applicable to conferring a gratuitous benefit upon some both States is vicious." meritorious object. The law stamps a man's to deduce the true rule from the many augenerosity with the name of fraud when it thorities of many States, we will discuss this prevents him from acting fairly towards his case by the authority of our statutes and creditors, and presumes fraud if he disables Codes, and in the light of the decisions of In such our own judicial tribunals. himself from paying his debts. case the presumption of fraud arises and may exist without the imputation of moral turpitude. The principle is, that persons must be just before they are generous, and that debts must be paid before gifts can be made." This doctrine, ever since the celebrated cases of Reade v. Livingston, 3 Johns. Ch. 500, 1 L. ed. 696, decided by Chancellor Kent, has been recognized and accepted by many judges in many States of the Union.

Having found the fact that the conveyances were voluntary conveyances, that the defendant Watson A. Bray was insolvent at the time be made the conveyances, and that these conveyances delayed and defrauded the plaintiff in the collection of his debt, was it still necessary for the court to find the further fact that the intent of the grantor in making the conveyances was to delay and defraud creditors, and was the court justified in Respondents insist that "the question of granting a new trial by reason of its failure intent is a question of fact, and that the in- to make such finding? Appellant contends tent or purpose of the grantor in making the that the absence of a finding of intent is transfer in all cases is a question for the jury, immaterial, because the conveyance being and that it is material to the issue to deter- voluntary, the grantor being insolvent, and mine whether the act done is a bona fide trans-the conveyance having defrauded the crediaction, or whether it is a trick or contrivance tor, the intent to delay and defraud follows

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as an absolute and conclusive presumption, and the intent, being the ultimate fact, necessarily results from such probative facts. In order to support this contention the ultimate fact must follow necessarily that is, as a matter of law-from the other facts.

"The only inferences which we can draw from the findings," said the court in De Celis v. Porter, 65 Cal. 10, "are inferences of law. We are not allowed to draw inferences of fact from the facts found. If this court would infer a fact from other facts, it would be usurping the province of the trial court, which alone can find the facts in issue. This is the rule with regard to special verdicts, and we are of opinion that the same rule applies to findings of fact." To the same effect are the cases of Chandler v. People's Sav. Bank, 65 Cal. 499; Salisbury v. Shirley, 66 Cal. 228; Hibberd v. Smith, 67 Cal. 556.

the intent was present in his mind to defraud, or that in making the transfer he may not have been actuated by the most honest motives.

is any possible state of facts consistent with the findings of the court heretofore quoted, and also consistent with the absence of fraudulent intent in the mind of the grantor at the time of the making of the deeds sought to be set aside in this action. The finding In Coveny v. Hale, 49 Cal. 556, the court of the court "that the defendant Bray by the said: "Of course, it is only when the con-making of these deeds did hinder, delay, and clusion follows as a matter of law that such defraud the plaintiff in the collection of his finding will be held sufficient." debt" throws no special light upon the solution of the question as to the actual intent of the grantor; while important as evidence of the intent, by reason of the presumption that every man intends the usual and ordinary consequences of his voluntary acts, yet our Statute requires that a conveyance shall not only delay and defraud creditors, but that it was made with the intent to delay and defraud, and the Statute appears to recognize the intent as the prevailing and controlling element in measuring the bona fides of the transactions. Bray did actually defraud Bull in the making of the deeds, by depriving him of property which would It may be conceded that it would have been otherwise have been applied to the satisfacperfectly proper for the trial court to have tion of the execution; but it does not necesdrawn an inference of fact as to the fraudu-sarily and conclusively follow therefrom that lent intent of the grantor from the other facts found; that this court might be justified in setting aside a finding to the contrary as not being supported by the evidence (Judson v. Lyford, $4 Cal. 505), but that does not dispense with the necessity of an actual and express finding as to the ultimate fact, as a fact, by the lower court, nor authorize this court to exercise what would be original jurisdiction by supplying a finding upon this most vital and essential matter. As section 3442 of the Civil Code declares that the question of fraudulent intent is "one of fact and not of law," it is not entirely plain that this court can under any state of facts, however plain they might be, hold that the ultimate fact might flow from the probative facts as a matter of law. But, assuming that the ultimate fact of "intent to defraud" may flow as "matter of law" from the probative facts, yet to obviate a finding of this ultimate fact the facts found must necessarily and conclusively indicate that the grantor was possessed of the intent to defraud at the time the conveyances were made. If the facts found do not absolutely exclude all possibility of the absence of fraudulent intent in the mind of the grantor, then the want of the finding of such intent cannot be dispensed with in this court. Thus, in the case of Emmal v. Webb, 36 Cal. 204, the court, in considering whether it could infer a fact from other facts, said: "To warrant us in so doing, the fact to be inferred must follow inevitably from the facts found, or in other words, the non-existence of the fact to be inferred must, upon every conceivable theory of which the case will admit, be inconsistent with the existence of the facts which are found." And to the same effect are Coreny v. Hale, 49 Cal. 556; Younger v. Pagles, 60 Cal. 520; Walker v. Buffandeau, 63 Cal. 312: Coglan v. Beard, 65 Cal. 63; Alhambra Addition Water Co. v. Richardson, 72 Cal. 601.

We then proceed to consider whether there

Appellant insists that the existence of the facts, to wit, "that the grantor was insolvent at the time of the transfer, and that the convevances were deeds of gift, render the inference of fraudulent intent absolute and conclusive, and a conveyance under such circumstances, therefore, would be void under any and all conceivable states of facts; and this is the important and determinative question in this case." Very many of the authorities from other States relied upon by appellant to support this contention rest in whole or in part upon the presumptions "that every man intends the usual and natural consequences of his voluntary act," and that "every man is presumed to know the condition of his own business;" and, applying those presumptions, it is said that the natural consequence of an insolvent giving away his property is to defraud his creditor, and that, therefore, the insolvent must have intended to defraud; and, again, “a man is presumed to know the condition of his own business affairs, and therefore if, as a matter of fact, he is insolvent, he must know of such insolvency."

Best, in his work on Evidence, section 307, speaking of the changes which this subject of presumptions has undergone in our legal history, says: Certain presumptions which in earlier times were deemed absolute and irrebuttable have, by the opinion of later judges, acting on more enlarged experience, either been ranged among præsumptiones juris tantum, or considered as presumptions of fact, to be made at the discretion of the jury. On the whole, modern courts of justice are slow to recognize presumptions as irrebuttable, and are disposed rather to restrict than to extend their number. To conclude a party by an arbitrary rule from adducing evidence in his favor is an act which can only be